Why Should International Law of Tomorrow be Different From Today?

Nizamuddin Ahmad Siddiqui* & Nithin Ramakrishnan** | Oct. 22. 2020

The following blog-post is a backgrounder to the yearlong Extended Lecture Series beginning October 2020 on ‘Alternative Approaches to International Law’. The Lecture Series is jointly organised by Weeramantry Centre for Peace, Justice and International Law, and Chinmaya Vishwavidyapeeth, Kerala. The first talk will be delivered by Dr. Celine Tan, University of Warwick, UK on the topic – Towards A New Architecture of International Public Finance in the COVID-19 Era on 30 October 2020. In case you find this blog-post relevant and further wish to attend the lecture, please register by clicking here.

Pandemic Grips the World

The onset of the Corona Pandemic since December 2019 has taken the world by surprise. The way the virus spread and the manner in which it impacted the lives of the people is known to everyone. The infection, which started to spread in China soon engulfed the whole world, and by March 2020, the Indian government had to announce a major lockdown throughout the country (see here). While the Coronavirus cases continue to soar and the world engages in finding a cure for it, the lives of people on the ground have been affected much more than we could have imagined. In India alone, the number of cases has drastically gone up and the no. of reported deaths stand more than 114,276 (with more than 7.5 million cases, as of October 18, 2020. See here). The loss of jobs in the informal sector is estimated to be around 119 million while the overall rate of unemployment rose from 8.4% to 23.8% (see here). According to the World Bank estimates, the lockdown from initial phases impacted around 40 million internal migrants in India (see here and here). The UN Secretary-General recently has identified the pandemic as a ‘generational catastrophe’ affecting more than a billion students in 160 countries; with over 300 million school students in India alone (see here). Meanwhile, the Indian government has announced a 20 lakh crore rupee stimulus package for the economy, which comes close to 10% of the GDP (see here and here).

As the pandemic of COVID-19 grips the world there is a huge economic fallout of this White Swan event (and not Black Swan, see here and here). COVID-19 seems to have not only impacted the economy in the short run; its repercussions are expected to be more pronounced in long run as well. The problems highlighted by Harvard Business Review demonstrate that the COVID-19 pandemic has disrupted the entire supply chain; shrunk consumer demand; has led to a large number of job losses; and, has put a heavy burden on medical infrastructure (see here and here). The impact it has made over millions of daily workers, ending them jobless, and triggering their migration across the cities, has been vividly on display across all media sources in India. It seems that the pandemic will impact the small and medium scale industries the most; and, we do not know how much, yet (see here and here).

Gaps in International Law

The COVID-19 pandemic has exposed the existing gaps within the development process. It has posed a loud question that cannot be anymore ignored. In developing countries, where the development is concentrated in city hubs, COVID-19 has proved that the distance between a nearby village to its town is more than the difference between geographically distant cities. It has proved that the call for an ‘internal globalisation’ is long due (see here). Internal migrants walking their homes hundreds of miles away; being arranged in groups with sanitizer sprayed at them from a distance; and of thousands of people gathered on bus stations only to be taken away, remained a normal sight for everyone sitting at home and watching news on television channels (see here, here and here). In a large country like India, by geography and demography, this is not unpredictable. The diffusion of development is a long-drawn process that requires the luxury of time. COVID-19 has delivered the lesson to the global south that it remains a rather unaffordable luxury.

International Law has a big role to play in this context. While it seems that the World Health Organization (WHO) or even the UN General Assembly, much like EU and other agencies have been unable to contain any of these implications, it also remains true that International Law remains our only hope (see Jouannet here; see Koskenniemi’s earlier disagreement here). It is only through the agency of International Law that we could eradicate poverty, apply stringent health regulations, more accessible knowledge systems and above all, better lives and better means of livelihood (see here). However, that does not seem possible in the current state of affairs, especially the way International Law has been structured and applied in its formal make-up. The language in which International Law finds its construction remains contested both in its literary style (see here) as well as in its core constituents (see here and here). 

It has also been debated that International Law is hegemonic. It is argued that the inherent core of International Law, i.e., it’s very sources, remains contested in the language of cultural, ethical and moral domination (see the chapter by Reut Yael Paz here). Moreover, it is also argued that International Law has to a greater extent being hijacked by entities for their interests; having the ability to coerce the system to perform to its tunes through the emergent transnational capitalism (see here). The problematic institutionalization of International Law can also be fathomed from its treatment of subjects like migration and refugee protection from the European context; while tales from the South, specifically the developing world, including South Asia, remain largely unheard (see chapter by B.S. Chimni here).

Utopia of Moving Forward

Indeed, International Law cannot perform to its full potential unless it also incorporates interests and knowledge from the developing part of the world. COVID-19 pandemic is a glaring example of that. Therefore, what has led the WHO (or any other international organization) to underperform does not merely stem from the deeply flawed argumentative structure of the international legal system but also from its systemic flaw and institutional design, and ill-appreciation of the realities about ground-level situations in countries like India. It is also due to self-righteous hypocrisy of the euro-centric knowledge of law and development, assuming altogether that the other parts of the world have nothing to contribute to the normative enrichment of the international law and global order. The British response to the India-South Africa TRIPS waiver request in the context of COVID-19 response at the WTO’s TRIPS Council is the latest example of this difference in the normative systems (See here and here).

It is here that Judge Christopher Gregory Weeramantry’s call in the preface to his treatise Universalizing International Law, becomes ineluctably relevant.

It [International Law] urgently needs to be universalised in regard to its constituency, for it needs the active support of a far wider group than its immediate votaries. It requires a vision that takes in the vast panorama of global cultures, as a source of enrichment of its principal concepts and underlying philosophies. It needs to take in the wisdom of the past and attune itself to the problems of the future. (see here)

International Law cannot fathom the diversity of the societies of the world, nor can it provide access to the promise of global peace and security (with the topping of justice), unless it also incorporates the regional aspirations and imbibes the local necessities of human existence. The diversity of this planet has not merely provided fodder for conflict but also food for prosperity for many centuries now. However, that has been made possible only with the vision of a prosperous future in times of crises such as the present one.

About the Authors

* Nizamuddin Ahmad Siddiqui is Senior Research Fellow and Ph.D. Candidate at Jindal Global Law School, OP Jindal Global University, Haryana, India. ✉ nasiddiqui@jgu.edu.in

** Nithin Ramakrishnan is Assistant Professor of International Law at Chinmaya Vishwavidyapeeth, Kerala, India. ✉nithin.ramakrishnan@cvv.ac.in

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PERSONALITY REVIEW: Chanakya as an International Legal Scholar

Moumita Mandal* | Aug. 23, 2020

Introduction

Chanakya, also known as Kautilya or Vishnugupta was a great ancient Indian scholar, economist and politician- all rolled into one. People came to know about his works after the publication of Kautilya’s Arthasastra by Dr. R. Shamasastry Mahamahopadyaya of Mysuru in 1909. Apart from publishing, Dr. Sastry is also credited with discovering and translating Kautilya’s work for the first time.

Historical accounts show that Kautilya was the mind behind uprooting Nandas from power and was also instrumental in placing Chandragupta Maurya on the throne of Magadha in 321 BC. The time of the composition of Arthasastra, is therefore, assumed to be somewhere falling in that part of the fourth century BC.

About Arthasastra

Arthasastra holds the distinction of being one of the earliest statecraft-based treatises authored on the diverse issues of diplomacy, war, peace, intelligence, security, and political economy. Originally written in Sanskrit, it was later translated by different scholars all over the world in many other languages.

Background

R.P.Kangle describes Kautilya’s magnum opus as a work of science that lays principles for the acquisition and protection of the earth. He observes that Arthasastra:

...is composed as a guide to acquire and secure this and the other world. In the light of this Sástra one can not only set on foot righteous, economical, and aesthetical acts and maintain them, but also put down unrighteous, uneconomical and displeasing acts. This Sástra has been made by him who from intolerance (of misrule) quickly rescued the scriptures and the science of weapons and the earth which had passed to the Nanda king

Artha’ means the sustenance or livelihood issues of humans, which are fundamentally economic in nature. The term acquires a wider import when understood in the context of Arthasastra. In the ancient Indian philosophy, apart from dharma (truth or law) and karma (action), artha (wealth) is considered as one of the trivargas (the three goals) of human existence. Therefore, Arthasastra does two things: firstly, it guides the ruler about protecting his territory and effectively administering the State; and secondly, it lays down the principles of territorial acquisition as a matter of foreign policy.

Johann Jakob Meyer, the German ideologist and translator of Arthasastra from Sanskrit to German in 1927, saw Arthasastra as not just a book but a ‘library’ of ancient India and early Indian treatise on statecraft covering the issues of diplomacy, war, peace, intelligence, security, and political economy. According to Adam Watson, it contains a ‘major theoretical analysis of international relations’ as an integral component of the problems of statecraft, a fusion unparallel in any extant literature’. Many Indian commentators are also convinced that a good part of Kautilya’s propositions remains relevant even today and that there is a need to understand and study his works in order to analyse and examine the contemporary world events.

The Text

Predating Machiavelli’s The Prince by more than 1500 years, Arthasastra continues as one of the most recognised works on political theology. It consists of 15 Books or adhikaranas, 150 chapters, 180 sections and 6,000 slokas. The first five books deal with tantra or the internal administration of the States; the next eight with avapa or the relations with neighbouring States, and the last two cover miscellaneous topics.

International Law

Arthasastra, like the Vienna Convention on Diplomatic Relations, 1961 engages elaborately with the conduct of envoys, their qualifications and duties (Book I, Chapter XVI). It mentions that the State envoy should make friends with the enemy’s officers, such as those in charge of wild tracts, boundaries, cities, and country parts. The envoy shall also contrast the military stations, sinews of war, and strong-holds of the enemy with those of his own master. Thus, the primary duties are:

Transmission of missions, maintenance of treaties, issue of ultimatum (pratápa), gaining of friends, intrigue, sowing dissension among friends, fetching secret force; carrying away by stealth relatives and gems, gathering information about the movements of spies, bravery, breaking of treaties of peace, winning over the favour of the envoy and government officers of the enemy,—these are the duties of an envoy (dúta).

Professor Ved P. Nanda points out in his work that if we consider the provisions of the Vienna Convention on the Law of Treaties, 1969 and compare them with Kautilya’s masterpiece, one could be startled to see that Arthasastra also deals with in detail and explains the critical principles relating to treaty-making, treaty obligations especially (on the lines of) pacta sunt servanda and ramifications of a breach of the treaty.

The method of territorial determination is also covered. The king may construct a village either on a new site or on old ruins (bhútapúrvamavá). The lower cap for the population of each village should be not less than a hundred families. Boundaries of the villages will be denoted by geographical markers like:

a river, a mountain, forests, bulbous plants (grishti), caves, artificial buildings (sétubandha), or by trees such as sálmali (silk cotton tree), samí (Acacia Suma), and kshíravriksha (milky trees) (Book II, Chapter I).

Kautilya further touches vital areas of modern international trade and economic law such as the determination of forms of agreements; administration of legal disputes; non-performance of agreements; recovery of debts; rules regarding labourers etc. (Book III, Chapter II). He even attempted an exposition on the constituents of a sovereign. He notes:

 the king, the minister, the country, the fort, the treasury, the army, and the friend are the elements of sovereignty (Book VI, Chapter I).

Many are aware that the premise of the United Nations today is based on the principles of respect and equality among sovereign nation-states. A part of the modern-day ‘sovereignty’ is based on classical Austinian understanding about the ‘determinate human superior’. Religion has little or no role to play. It is interesting how Kautilya could isolate religion in his supposedly orthodox times to extract the determinate elements in the sovereign.

Arthasastra encompasses detailed discussions around war, encampment, the march of the camp, protection of the army in times of distress and attack, the politics of fighting and battle-fields, the work of spies in a siege and so on (Books X, XII, XIII, XIV). It is also submitted that Kautilya’s counsel to the King regarding his duties during peace and war are reflected directly or indirectly in the International Humanitarian Law as we know it today. There are specific techniques recommended to end the war if in the interest of the State: ‘sama (quiet), sandhi (agreement of peace), and samadhi (reconcilement)” are some of them (Book VI, Chapters XIII and XVII). Kautilya exhorts the State to adopt six-fold State policies- peace (sandhi), war (vigraha), observance of neutrality (asana), marching (yana), alliance (samsraya), and making peace with one and waging war with another. These techniques, Kautilya argues would lead the King to pass from the state of deterioration to that of stagnation and from the latter to that of progress (Book VII, Chapter I). He advocates the nature of alliances in a way that one should prefer peace when the advantages of peace and war look the same. Also, war brings a lot of disadvantages such as the loss of power and wealth, sojourning and sin. Peace must be preferred. Alliance with a stronger State is preferred. In peace or war, when a king finds neither loss to his enemy nor gains to himself, he should observe neutrality (Book VII, Chapter II and III). In Arthasastra, Kautilya breaks down neutrality (as a legal concept) into three aspects and defines them as:

keeping quiet, maintaining particular type of policy is sthana: withdrawal from hostile actions for the sake of one’s own interest is asana: and talking no steps or strategic means against the enemy is upeksna.

Finally, Arthasastra also covers dealing with providential calamities like fire, floods, and the epidemic (maraca). It also chalks the duties of a king with regards to appointing officials and superintendents in several departments along with adopting other necessary measures to cope with such calamities (Book VIII). This part of Kautilya’s work is quite close to today’s idea of disaster governance and management; and, international health and environmental law, which help provide mechanisms to tackle pandemics, environmental disasters, etc.

Final Remarks

The contribution of Kautilya to international relation theory (with significant international law overlapping) is so rich that a blog post can hardly do justice to his phenomenal work. He wanted his King to be endowed with all the necessary capabilities to be in power and protect it from external interventions. There may be debates regarding Kautilya’s propositions, but his inimitable contribution continues to be relevant in the present time.

References :

  1. Aunindyo Chakravarty, Why Celebrating Chanakya & ‘Chanakya Niti’ Goes Against Democracy, The Quint, 28 November 2019, available at https://www.thequint.com/voices/opinion/chanakya-niti-amit-shah-sharad-pawar-indian-democracy-maharashtra-election-drama.
  2. Definition of dharma and karma sourced from the Oxford Advanced Learner’s Dictionary; https://www.oxfordlearnersdictionaries.com/definition/english/dharma
  3. P.K Gautam, One Hundred Years of Kautilya’s Arthasastra, IDSA Monograph Series No. 20 July 2013, pp. 7- 37.
  4. Prathama Banerjee, Chanakya/Kautilya: History, Philosophy, Theater and the Twentieth-century Political, 2:1 History of the Present 24-51  (2012).
  5. R. Shamasastry translated Kautiliya Arthasastra, V. Narain (ed.), (Chaukhamba Sanskrit Pratishthan, 2005).
  6. R. Shamasastry, Kautilya’s Arthashastra, (Government Press, 1915).
  7. R.P Kangle, The Kautiliya Arthasastra, (Motilal Banarsidas Pvt. Ltd, 1965).
  8. S.N.Bhagirath, Dr. R. Shamasastry Mahamahopadyaya of Mysuru Who Discovered The Lost Treatise Arthashastra!, Start of Mysuru, 20 February 2018 available at https://starofmysore.com/dr-r-shamasastry-mahamahopadyaya-mysuru-discovered-lost-treatise-arthashastra/
  9. Charter of the United Nations, 1945.
  10. Ved P. Nanda, International Law in Ancient India in Mark W. Janis & Carolyn Evans (eds.), Religion and International Law, 53 (Martinus Nijhoff, 2004).
  11. Vienna Convention on Diplomatic Relations, 1961.
  12. Vienna Convention on the Law of Treaties, 1969.

*About the Author:

Moumita is a Ph.D. in International Law from the Centre for International Legal Studies, Jawaharlal Nehru University, New Delhi, India. She thanks her teacher Prof. Bharat H. Desai for his support and guidance. She also thanks Mr. Dev Kumar Jhanj, a doctoral candidate at the Centre for Historical Studies, JNU for his inputs.

✉ mousupernova2010@gmail.com

For pdf click here